A law firm’s involvement in the events underlying litigation does not automatically make its lawyers necessary trial witnesses.
U.S. District Judge Amir Ali rejected the government’s attempt to disqualify Susman Godfrey from representing the American Bar Association on October 16.
The government relied on the advocate-witness rule. Ali found that it had not identified a firm lawyer likely to be a necessary witness at trial. The ruling concerns counsel’s participation, not the merits of the ABA’s underlying claims.
A potential witness is not necessarily a necessary witness
The court distinguished general assertions about the firm’s connection to the dispute from a supported account of required testimony.
The government had not explained which lawyer would likely be called, the subject of the testimony or why it would be necessary to a contested issue.
Ali also emphasized that the relevant rule concerns individual lawyers. A restriction affecting one lawyer would not automatically disqualify the whole firm under that rule.
The distinction matters to litigation strategy
A disqualification request can significantly disrupt a party’s representation. That makes precision about its legal and factual foundation important.
Counsel raising an advocate-witness issue should distinguish knowledge of relevant events from testimony necessary to resolve them. They should also identify the procedural stage and the particular role the challenged lawyer would perform.
Those questions cannot be answered simply by saying the firm is part of the story.
Individual restrictions and firm-wide conflicts require separate analysis
The ruling should not be generalized into a conclusion that one lawyer’s involvement can never affect colleagues.
Instead, it identifies the limits of the rule relied upon in this motion. Other professional-conduct provisions raise different questions.
For Canadian practitioners, the decision is a U.S. comparison. The applicable Canadian rules and authorities require their own analysis.
What firms can take from it
Where a lawyer may possess relevant evidence, firms should identify that issue early, document the lawyer’s involvement and distinguish the proposed testimony from the work of the litigation team.
A clear record supports a focused assessment of whether roles need to change.
Being connected to the facts is not the same as being indispensable on the witness stand.
Related coverage: DeviantArt Seeks Crowell’s Disqualification in AI Copyright Case.
Sources: Memorandum opinion and order, Document 86 .